Roane v. Elizabeth Sch. Dist.

555 P.3d 69

2024 COA 59

Matt ROANE, Plaintiff-Appellee,

v.ELIZABETH SCHOOL DISTRICT, Defendant-Appellant.

Court of Appeals No. 23CA1969

Colorado Court of Appeals, Div. IV.

Announced May 23, 2024

Elbert County District Court No. 23CV30058, Honorable Theresa Slade, Judge

Matt Roane Law, Matt Roane, Pagosa Springs, Colorado, for Plaintiff-Appellee

Miller Farmer Carlson Law, LLC, Bryce Carlson, Colorado Springs, Colorado, for Defendant-Appellant

Rachel Amspoker, Hilary Daniels, Denver, Colorado, for Amicus Curiae Colorado Association of School Boards

Michelle Murphy, Lafayette, Colorado, for Amicus Curiae Colorado Rural Schools Alliance

Timothy R. Macdonald, Anna I. Kurtz, Laura Moraff, Denver, Colorado, for Amicus Curiae American Civil Liberties Union of Colorado

Eric Maxfield Law, LLC, Eric Maxfield, Boulder, Colorado, for Amicus Curiae Colorado Freedom of Information Coalition

Opinion by JUDGE KUHN

¶ 1 In this interlocutory appeal, we consider whether a plaintiff has standing to sue a local public body for a violation of the Colorado Open Meetings Law (OML) when the plaintiff has not pleaded meaningful connections to the local public body whose actions are being challenged. Applying the standing test enunciated in Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977), we first hold that section 24-6-402(9)(a), C.R.S. 2023, creates a legally protected interest in favor of at least every natural person in Colorado — including the plaintiff here — in having public bodies conduct public business in compliance with the OML. We then determine that the plaintiff has articulated a sufficient injury in fact by alleging that the local public body violated that interest. We therefore conclude that the plaintiff has standing and affirm the district court’s decision denying the local public body’s motion to dismiss.

I. Background

¶ 2 Plaintiff, Matt Roane, is an attorney in Pagosa Springs — a town located in southwestern Colorado — who has developed a niche legal practice. He reviews meeting agendas, minutes, and recordings of local public bodies across the state for their OML compliance. Upon perceiving a potential violation of the statute, he sues the local public body as a pro se plaintiff. He then seeks attorney fees in the action or offers to settle for a set amount. Since 2019, Roane has filed approximately 100 OML-related actions — a majority of which have been directed against school districts.

¶ 3 The present appeal arises out of one such suit. Roane alleged that defendant, Elizabeth School District, improperly announced an executive session during a public meeting on April 10, 2023, in Elizabeth — 300 miles and several counties to the northeast of Pagosa Springs. He asserted that during that meeting, the members of the School District’s board of education convened in a private executive session "for the purpose of seeking legal advice" from their attorney. Roane claims this action violated section 24-6-402(4) because the School District "failed to describe the particular matter it intended to discuss in the Executive Session in any manner whatsoever."

¶ 4 In response, the School District filed a "Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to C.R.C.P. 12(b)(1)." The School District contended that Roane lacked standing to pursue the action because, as a resident of a distant county with no apparent ties to Elizabeth or the School District, he didn’t suffer any injury in fact from the alleged irregularities in the executive session announcement. Disagreeing with the School District, the district court denied the motion to dismiss. It reasoned that because Roane is a citizen of Colorado, "he has a legally protected interest in having public bodies conduct public business openly in conformity with the provisions of the [OML]."

¶ 5 The School District timely sought certification of the district court’s ruling denying the standing challenge under C.A.R. 4.2(c). The court ordered the certification over Roane’s objection. The School District then filed a petition in this court to allow the interlocutory appeal under C.A.R. 4.2(d), which another division of this court granted.

¶ 6 On appeal, the School District contends that the district court erred by denying the motion to dismiss because the court (1) applied the incorrect legal standard in deciding it; and (2) concluded that Roane had standing to maintain his lawsuit under the OML, even though, in the School District’s view, he did not suffer an injury in fact as a result of the claimed violation. We disagree with the School District on both counts.

II. Appellate Jurisdiction

¶ 7 Before turning to the merits of the School District’s appeal, we first explain why interlocutory review of the district court’s order is appropriate.

[1, 2] ¶ 8 With limited exceptions, this court has jurisdiction only over final judgments — that is, judgments that end an action, leaving nothing further for the district court to do to completely determine the parties’ rights. Wilson v. Kennedy, 2020 COA 122, ¶¶ 5-7, 490 P.3d 855. One such exception is set forth in section 13-4-102.1(1), C.R.S. 2023, and C.A.R. 4.2, which allow this court, in its discretion, to review a non-final order in a civil case when the district court certifies, and we agree, that (1) immediate review may promote a more orderly disposition or establish a final disposition of the litigation; (2) the order involves a controlling question of law; and (3) that question of law is unresolved. S. Conejos Sch. Dist. RE-10 v. Wold Architects Inc., 2023 COA 85, ¶ 11, 541 P.3d 17. We conclude that each of these requirements is satisfied here.

[3] ¶ 9 First, our immediate review of the question presented to us — whether Roane has standing to sue the School District for the alleged violation of the OML — may "establish a final disposition of the litigation." C.A.R. 4.2(b)(1). If we conclude that Roane lacks standing in this matter, then his action against the School District fails. See Hickenlooper v. Freedom from Religion Found., Inc., 2014 CO 77, ¶ 7, 338 P.3d 1002 ("If a court determines that standing does not exist, then it must dismiss the case."); see also Barber v. Ritter, 196 P.3d 238, 245 (Colo. 2008) ("Standing is a threshold issue that must be satisfied in order for a court to decide a case on the merits.").

[4–7] ¶ 10 Second, the question presented is a controlling question of law. Whether a particular question is controlling depends on the nature and circumstances of the order being appealed. Affiniti Colo., LLC v. Kissinger & Fellman, P.C., 2019 COA 147, ¶ 17, 461 P.3d 606. We consider a number of factors in making that decision, including, as relevant here, whether the question may be dispositive of the case. Id.; see also Indep. Bank v. Pandy, 2015 COA 3, ¶ 10, 383 P.3d 64, aff’d, 2016 CO 49, 372 P.3d 1047. Because standing is a constitutional prerequisite to the district court’s ability to entertain the parties’ dispute, see Freedom from Religion Found., ¶ 7, our resolution of the School District’s standing challenge could result in the dismissal of Roane’s complaint. This makes the question of standing case dispositive and, therefore, controlling. See Indep. Bank, ¶ 11 (finding the second requirement satisfied in similar circumstances).

[8] ¶ 11 Finally, the relevant question is an unresolved question of law. A question of state law is unresolved if it hasn’t been decided by our supreme court or determined in a published decision of this court. C.A.R. 4.2(b)(2). While a division of our court considered the scope of a plaintiff’s standing under the OML in Weisfield v. City of Arvada, 2015 COA 43, 361 P.3d 1069, neither the supreme court nor a published decision of this court has resolved the exact legal question before us. Indeed, the division in Weisfield expressly declined to address the issue raised here:

We need not determine whether the expansive language of section … 24-6-402(9) should be read literally to allow any citizen of Colorado to challenge any violation of the [OML], even if, for example, the citizendoes not reside within the jurisdiction of the public body whose actions are being challenged.

Weisfield, ¶ 24. Consequently, the third requirement is also satisfied.

¶ 12 Accordingly, we conclude that our review of the School District’s interlocutory appeal is warranted under section 13-4-102.1(1) and C.A.R. 4.2(b). We turn next to the merits of that appeal.

III. The Incorrect Legal Standard Argument

¶ 13 The School District first contends that the district court applied the wrong legal standard in analyzing the motion to dismiss. We disagree.

A. Applicable Law and Standard of Review

[9, 10] ¶ 14 Standing is usually — as was the case here — challenged in a motion to dismiss under C.R.C.P. 12(b)(1). TABOR Found. v. Colo. Dep’t of Health Care Pol’y & Fin., 2020 COA 156, ¶ 6 n.3, 487 P.3d 1277. If such a motion involves a factual attack on the jurisdictional allegations of the complaint, then the district court may conduct a hearing to receive evidence and resolve the factual dispute. See Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924-26 (Colo. 1993). Thus, while a court must take the plaintiff’s allegations in the complaint as true and draw all inferences in the plaintiff’s favor when considering a motion to dismiss for failure to state a claim under C.R.C.P. 12(b)(5), a motion to dismiss based on jurisdiction permits the court "to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Medina v. State, 35 P.3d 443, 452 (Colo. 2001) (citation omitted).

[11] ¶ 15 Whether a district court applied the correct standard of review in ruling on a motion is a question of law that we review de novo. In re Marriage of Durie, 2018 COA 143, ¶ 19, 459 P.3d 637, aff’d, 2020 CO 7, 456 P.3d 463.

B. Discussion

[12] ¶ 16 The School District argues that "[t]he district court improperly treated [the] motion to dismiss pursuant to ...